State v. Reeder , 2021 Ohio 2988 ( 2021 )

[Cite as State v. Reeder, 2021-Ohio-2988.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
STATE OF OHIO, :
Appellee, : CASE NOS. CA2020-09-012
CA2020-09-013
:
- vs - OPINION
: 8/30/2021
JASON DANIEL REEDER, :
Appellant. :
CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
Case Nos. CRI 19-500-231 and CRI 20-500-028
Andrew T. McCoy, Clinton County Prosecuting Attorney, and Danielle E. Sollars, Assistant
Prosecuting Attorney, for appellee.
Jon R. Sinclair, for appellant.
HENDRICKSON, J.
{¶1} Appellant, Jason Daniel Reeder, appeals from his convictions in the Clinton
County Court of Common Pleas for robbery, telecommunications fraud, and various drug-
possession offenses. For the reasons set forth below, we affirm appellant's convictions.
{¶2} At approximately 8:53 p.m. on December 2, 2019, a man entered Hidden
Carry-Out, a convenience store in Wilmington, Clinton County, Ohio, wearing dark pants, a
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brown Carhartt-style jacket, a black ski mask or toboggan type mask, and black gloves.
The man approached the store's worker, Carl Butts, and whispered, "I want your money."
Butts thought the individual was joking and laughed. The man in the mask responded by
pulling an object out of his pocket and striking Butts multiple times on the head. Butts, who
began bleeding from injuries to his head, fell to the floor.
{¶3} The man demanded entry into the cash register and threatened to strike Butts
again if Butts did not tell him how to open it. Butts told the man how to open the register
and the man took approximately $450 in cash. The man also took a number of scratch-off
lottery tickets before fleeing the store. Butts then pressed the store's emergency alarm to
notify law enforcement of the robbery. Other than Butts, no one was present in the store
during the robbery.
{¶4} Multiple officers from the Wilmington Police Department responded to the
scene. When they arrived, they found Butts bleeding heavily from his head. They also
found the handle of an airsoft gun. The item was taken into evidence, as the officers
believed the item was used during the robbery to cause injuries to Butts' head.
{¶5} Butts was able to provide the officers with a description of the robbery-
suspect. Butts told officers that while he "recognized the voice" of his assailant as someone
who had been in the store before, he was unable to identify the robber as the person had
obscured his face with a mask. Butts provided a description of what his assailant had been
wearing and described the man as a "light-skinned African American man." Butts was then
transported to a nearby hospital, where he received nine staples and five stitches to his
head.
{¶6} The owner of Hidden Carry-Out, Depak Patel, and his son, Nayan Patel, who
managed the convenience store and handled the lottery portion of the business, arrived at
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Hidden Carry-Out after the robbery. The Patels provided law enforcement with a recording
of the robbery, which had been caught on the store's security cameras. Nayan then
contacted the Ohio Lottery Commission about the stolen lottery tickets.
{¶7} Regarding the lottery tickets, Nayan explained that each week the store
received a delivery of lottery tickets with an invoice that inventoried each individual ticket
that had been sent. Nayan went through each ticket and checked the ticket numbers
against the invoice to make sure there had not been a mispack and that he received the
correct items. He then scanned the invoice number to confirm receipt of the tickets. When
it was time for the tickets to be placed on the store's floor for sale to customers, Nayan
activated the roll of tickets. If a customer bought a lottery ticket, it could then be scanned
though the lottery's own point of sale system.
{¶8} Michael Grause, an investigator with the Ohio Lottery Commission, looked
into the lottery tickets stolen from Hidden Carry-Out. Grause explained that lottery tickets
can be tracked similar to how UPS packages can be tracked. Each ticket in a roll has its
own identifying number, comprised of three parts - a game number, a series or book
number, and a ticket number. From this number, the Ohio Lottery is able to determine what
store the ticket came from and in what store the ticket was eventually redeemed. When
tickets are cashed in, they are validated over a telecommunication service known as the
lottery system.
{¶9} From security footage of the robbery, it was determined that Cashword lottery
tickets, as well as other lottery tickets, including a $250,000 A Year for Life ticket, had been
taken. Grause was provided with the book numbers and the approximate span of tickets
that were taken during the robbery. Using this information, Grause was able to run reports
that identified when and where the stolen tickets were scanned to see if they were winning
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tickets or where the tickets were validated, or turned in, for cash at a retail store. These
reports showed that the stolen tickets were either checked or cashed in at four different
locations in Wilmington. At 9:22 p.m. on December 2, 2019, nearly one-half hour after the
robbery occurred, a $250,000 A Year for Life ticket was validated at the Sunoco on South
Street. Between 10:32 p.m. and 10:34 p.m. on December 2, 2019, four Cashword lottery
tickets were scanned to see if they were winning tickets at a Kroger. At 10:52 p.m. on
December 2, 2019, one of the winning tickets that had been inquired about at Kroger was
validated at a Sunoco on East Main Street. Finally, at 2:04 p.m. on December 3, 2019, a
Cashword lottery ticket was validated at Shop N Go.
{¶10} The details of when and where the stolen lottery tickets had been validated
were shared with the detectives investigating the robbery. The detectives used the
information to obtain security footage of the stolen lottery tickets being validated at the
Kroger and two Sunoco stores. The Shop N Go did not have surveillance footage of the
validation, but did have the lottery ticket that had been cashed in. The security recordings
and recovered lottery ticket were taken into evidence.
{¶11} Detectives Scott Baker and Cody Juillerat reviewed the security footage
obtained from Hidden Carry-Out, Kroger, and the two Sunoco stores. The detectives
observed that the individual who robbed Hidden Carry-Out wore a black toboggan that had
a white tag on it. The black gloves the robber wore had white writing on the side.
Additionally, the brown Carhartt-style jacket the robber wore had a pocket or a slit for a
pocket on the chest area of the jacket. The individual who cashed in the stolen lottery
tickets shortly after the robbery occurred was not dressed in the same clothing as the
robber. The person who cashed in the lottery tickets wore jeans and a grey-blue jacket.
The individual's face was visible on the security footage. Based on his prior dealings with
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appellant, Detective Baker was able to identify appellant as the individual cashing the lottery
tickets.
{¶12} Law enforcement obtained a warrant to search appellant's apartment for
evidence relating to the robbery. Appellant resided on Mulberry Street in Wilmington. His
apartment was located between Hidden Carry-Out and the South Street Sunoco, where the
first stolen lottery ticket was validated. According to Detective Juillerat, it would only take
two or three minutes to get from Hidden Carry-Out to appellant's residence by car and the
two locations were easily within running distance of one another.
{¶13} When the warrant was executed on December 5, 2019, officers found
appellant in the back bedroom of the apartment. Drugs and drug paraphernalia were also
found in the back bedroom, leading law enforcement to obtain a second warrant for illegal
narcotics. During the search, multiple items relating to the robbery were found. Black
gloves with white writing on them were found next to the bed where appellant slept. In the
living room, which contained two beds, a brown Carhartt-style jacket was located rolled up
inside a pillowcase on one of the beds. The jacket had a pocket on the left side of the chest.
A Cashword lottery ticket was found on the nightside table by appellant's bed. Additional
Cashword lottery tickets were found in the kitchen trashcan. A black toboggan with a white
tag was also located in the trashcan. A grey-blue jacket that looked like the jacket worn
when appellant cashed in the lottery tickets was found hanging in a closet. Airsoft guns
were also found in appellant's residence, although none appeared to be broken or missing
a handle.
{¶14} Officers also discovered a white baggie of narcotics, a plate with drug residue,
a glass pipe, and a digital scale with residue in a trashcan inside appellant's back bedroom.
Two baggies of narcotics were found in a pair of shoes located on a shoe rack in appellant's
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back bedroom.
{¶15} Several items recovered during the search of appellant's residence were sent
off for laboratory testing, including DNA testing. While no blood was found on the black
gloves recovered from appellant's apartment, appellant's DNA was found inside the gloves.
Samples taken from the cuff and neck of the brown Carhartt-style jacket were tested and
were found to be consistent with appellant's DNA. Appellant's DNA was not found on the
toboggan located in the kitchen trashcan. Neither appellant's DNA nor Butts' DNA was
found on boots taken from appellant's bedroom.
{¶16} DNA testing was also done on the airsoft gun handle recovered from Hidden
Carry-Out. Though appellant's DNA was not found on the handle, Butts' DNA was found,
suggesting that Butts had been struck with the item. Chemical testing of the narcotics found
during the search revealed there were 2.79 grams of methamphetamine and 0.20 grams of
a heroin and fentanyl mix in the baggies recovered from appellant's bedroom.
{¶17} An examination of the Cashword lottery tickets recovered from appellant's
residence indicated that they were not the tickets stolen from Hidden Carry-Out. While the
tickets were the same type of ticket (i.e., the Cashword game) stolen from the convenience
store, the specific identification numbers on the tickets found in appellant's residence were
not a match for the stolen tickets' identification numbers.
{¶18} Detectives Baker and Juillerat interviewed appellant subsequent to the search
of his residence. During the interview, appellant denied being on the lease of the Mulberry
Street apartment and denied that any of the drugs or drug paraphernalia found in the
apartment belonged to him. However, appellant later admitted that the apartment was his
"crib." In addition to admitting that he stayed there, appellant indicated he permitted others
to move in and out of the apartment.
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{¶19} Appellant denied that he robbed Hidden Carry-Out on December 2, 2019.
When asked by Detective Baker where he was that night, appellant stated that he was not
certain of his whereabouts but was "usually home." Appellant acknowledged he had been
to Hidden Carry-Out on previous occasions, but he did not think he went to the store on the
day of the robbery. Appellant claimed he did not remember cashing any lottery tickets on
December 2, 2019, but admitted that he purchases lottery tickets, "all the time" and that
"pretty much all [he] do[es] is Cashword" tickets. He denied that he had anything to do with
the robbery at Hidden Carry-Out and stated that the lottery tickets found in his apartment
had been purchased from Walmart. Appellant claimed he usually purchased his tickets
from Walmart, Gas of America, Speedway, and a tobacco store because he tries to stay in
his "circle" when playing the lottery. Appellant did not mention purchasing tickets or
validating tickets at Kroger, Sunoco, or Shop N Go. He did claim that he had gotten lucky
and found winning tickets before – sometimes in trashcans – but he could not remember
where or when that occurred. Appellant never mentioned that he found a stack of Cashword
lottery tickets by the railroad tracks near Doan Street.
{¶20} Appellant denied ownership of the black gloves found in the back bedroom.
While he admitted that the shoes found in the back bedroom were his, he denied that the
drugs found inside the shoes were his. He also acknowledged that the brown coat found
in the pillowcase in the living room was his, but claimed he did not know that it had been
rolled up inside the pillowcase.
{¶21} Appellant was arrested on December 5, 2019 on a charge of robbery. The
charge was filed in the Clinton County Municipal Court on December 6, 2019. The case
was subsequently bound over to the Clinton County Court of Common Pleas. On January
13, 2020, in Case No. CRI 19-500-231, appellant was indicted on one count of robbery in
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violation of R.C. 2911.02(A)(2) and (B), a felony of the second degree, and one count of
telecommunications fraud in violation of R.C. 2913.05(A) and (C), a felony of the fifth
degree. Less than a month later, on February 10, 2020, appellant was indicted in Case No.
CRI 20-500-028 on one count of aggravated possession of drugs (methamphetamine) in
violation of R.C. 2925.11(A) and (C)(1)(a), one count of possession of heroin in violation of
R.C. 2925.11(A) and (C)(6)(a), and one count of possession of a fentanyl-related compound
in violation of R.C. 2925.11(A), all felonies of the fifth degree.
{¶22} Appellant pled not guilty to all charges and the two cases were consolidated
for trial. A two-day jury trial commenced on May 27, 2020. The state presented testimony
from Butts, Depak and Nayan Patel, Grause, and from law enforcement officers involved in
the robbery investigation and search of appellant's residence. Appellant's recorded police
interview with Detectives Baker and Juillerat, evidence obtained during the search of
appellant's residence, and security footage of the robbery and the validation of the stolen
lottery tickets were admitted into evidence.
{¶23} Appellant testified in his own defense. Appellant stated that on the evening
of December 2, 2019, he was walking around Wilmington playing lottery tickets at various
stores. Appellant denied that he went to Hidden Carry-Out on the night of the robbery.
However, he admitted that he validated winning tickets from Hidden Carry-Out at Kroger
and two Sunoco stores that evening. Appellant claimed he found "half a dozen or so" tickets
folded up by the railroad tracks near the corner of Grant and Doan Streets and these were
the tickets he cashed in. Appellant stated that he "usually find[s] a lot of * * * lottery tickets
on the ground" or in trashcans, and that he frequently turns the tickets in to see if they are
winners. Appellant did not tell the detectives about finding the tickets near Doan Street
when he was interviewed on December 5, 2019, because he was "nervous" and "didn't
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really think about it at the time."
{¶24} Appellant further testified that he shares the Mulberry Street apartment with
six other people and stated that not all the items located within the apartment were his, as
his roommates and guests frequently left items there. Appellant denied ownership of the
black gloves with the white writing that were found in his bedroom, but stated that he may
have worn them at some point to protect his hands when he was "scrapping or junking."
He also denied ownership of the black toboggan and the drugs found in the apartment.
However, he admitted that the brown coat found in the pillowcase in the living room
belonged to him. Appellant testified that he was using the coat as a pillow, something he
"used to do in the joint all the time."
{¶25} After considering the evidence presented at trial, the jury found appellant
guilty of all charges. The matter proceeded to sentencing on May 29, 2020. In Case No.
CRI 19-500-231, the trial court imposed an indefinite prison term of six to nine years for the
robbery offense and a ten-month prison term for telecommunications fraud. The sentences
were run concurrently with one another. In Case No. CRI 20-500-028, the trial court
determined that the possession of heroin and possession of a fentanyl-related compound
offenses were allied offenses subject to merger. The state elected to proceed on the
conviction for possession of a fentanyl-related compound, and the trial court imposed a ten-
month prison term on the offense. It also imposed a ten-month prison term on the
aggravated possession of drugs conviction. The prison terms were run concurrently with
one another and concurrently to the six-to-nine-year indefinite prison term imposed in Case
No. CRI 19-500-231.
{¶26} Appellant appealed his convictions, raising two assignments of error for our
review.
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{¶27} Assignment of Error No. 1:
{¶28} THE TRIAL COURT ERRED BY ENTERING A CONVICTION FOR FELONY
CHARGES WHEN THERE WAS INSUFFICIENT EVIDENCE FOR THE CONVICTION.
{¶29} In his first assignment of error, appellant argues his convictions for robbery
and telecommunications fraud are not supported by sufficient evidence and are against the
manifest weight of the evidence. Specifically, appellant maintains that there was no
evidence "that proved the Hidden Carry-Out tickets cashed in the hours after the robbery
were the tickets taken during the robbery." He further argues there was no evidence proving
he was the individual who committed the robbery. Appellant does not challenge his
convictions on the possession charges.
{¶30} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead,
194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency
of the evidence underlying a criminal conviction, an appellate court examines the evidence
in order to determine whether such evidence, if believed, would convince the average mind
of the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No.
CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt."
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶31} On the other hand, a manifest weight of the evidence challenge examines the
"inclination of the greater amount of credible evidence, offered at a trial, to support one side
of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,
2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight
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of the evidence, the reviewing court must look at the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of the witnesses, and determine whether
in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.
In reviewing the evidence, an appellate court must be mindful that the jury, as the original
trier of fact, was in the best position to judge the credibility of witnesses and determine the
weight to be given to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-
Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the
manifest weight of the evidence "only in the exceptional case in which the evidence weighs
heavily against the conviction." Id., citing State v. Thompkins, 78 Ohio St.3d 380, 387
(1997). Further, although the legal concepts of sufficiency of the evidence and weight of
the evidence are quantitatively and qualitatively different, "[a] determination that a
conviction is supported by the manifest weight of the evidence will also be dispositive of the
issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150,
¶ 19.
{¶32} Appellant was convicted of robbery in violation of R.C. 2911.02(A)(2), which
provides that "[n]o person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall * * * [i]nflict, attempt to inflict, or threaten to
inflict physical harm on another." Appellant was also convicted of telecommunications fraud
in violation of R.C. 2913.05(A), which provides that "[n]o person, having devised a scheme
to defraud, shall knowingly disseminate, transmit, or cause to be disseminated or
transmitted by means of a wire, radio, satellite, telecommunication, telecommunications
device, or telecommunications service any writing, data, sign, signal, picture, sound, or
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image with purpose to execute or otherwise further the scheme to defraud." A person acts
knowingly when, regardless of purpose, "the person is aware that the person's conduct will
probably cause a certain result or will probably be of a certain nature." R.C. 2901.22(B).
{¶33} After reviewing the record, weighing inferences and examining the credibility
of the witnesses, we find that appellant's convictions for robbery and telecommunications
fraud are supported by sufficient evidence and are not against the manifest weight of the
evidence. The state presented testimony and evidence from which the jury could have
found all the essential elements of the offenses proven beyond a reasonable doubt. The
state established through Butts' testimony and video surveillance footage that an assailant
entered Hidden Carry-Out at 8:53 p.m. on December 2, 2019 dressed in dark pants, a brown
Carhartt-style jacket, a black toboggan hat with a white tag on it, and black gloves with white
writing on the side. After striking Butts in the head and causing physical harm, the assailant
took $450 cash and multiple Ohio lottery tickets. Surveillance footage showed the assailant
looking for a specific game before choosing the Cashword game. According to Depak Patel,
the owner of the store, the assailant did not have permission to take the cash from the
register or the lottery tickets without paying.
{¶34} Contrary to appellant's assertions, neither law enforcement nor the state
merely "guessed" what lottery tickets were stolen from Hidden Carry-Out during the robbery.
Rather, the lottery tickets that were stolen were able to be determined through use of
surveillance footage, consultation with Nayan Patel, who handled and kept track of the
store's lottery shipments and sales, and use of records and reports from the Ohio Lottery
Commission, which Grause testified about in detail. Grause, who was not cross-examined
by defense counsel, explained that lottery tickets have an identifying number and can be
tracked to see what store a ticket came from and what store the ticket was eventually
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cashed. After being provided with the book numbers and the span of tickets taken during
the robbery, Grause was able to determine that the stolen tickets had either been checked
or cashed at four locations in Wilmington: the South Street Sunoco, the Sunoco on East
Main Street, a Kroger, and a Shop N Go. He was also able to determine that some of the
validations had occurred within one-half hour to two hours of the robbery. Surveillance
footage of the validations demonstrated appellant was the individual cashing the tickets and
that the stolen tickets were validated over a telecommunications service known as the Ohio
lottery system.
{¶35} Items found in appellant's apartment provided strong circumstantial evidence
that he was the individual who had robbed Hidden Carry-Out. As this court has previously
recognized, "[t]he identity of the accused as the perpetrator of the crime may be established
by direct or circumstantial evidence. * * * Circumstantial and direct evidence have the
same probative value." State v. Jividen, 12th Dist. Warren No. CA2020-10-067, 2021-Ohio-
2720, ¶ 11, citing State v. Lee, 12th Dist. Fayette Nos. CA2020-09-014 and CA2020-09-
015, 2021-Ohio-2544, ¶ 25. Here, officers found a brown Carhartt-style jacket rolled up and
hidden in a pillowcase, a black toboggan hat that contained a white tag, and black gloves
with white writing on the side. All of these items appeared to match the clothing worn by
the perpetrator of the robbery. DNA evidence tied appellant to the black gloves and the
brown jacket. Also found in appellant's apartment were multiple Cashword tickets and a
grey-blue jacket that looked like the jacket appellant wore when cashing the stolen lottery
tickets. Although the Cashword tickets found in appellant's apartment were not the specific
tickets taken from Hidden Carry-Out, the tickets were evidence of appellant's affinity for the
Cashword game. An affinity that appellant later admitted to having when he told Detectives
Baker and Juillerat that "pretty much all [he] do[es] is Cashword" tickets.
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{¶36} Detective Juillerat testified about appellant's apartment's proximity to Hidden
Carry-Out and the South Street Sunoco, where the first stolen lottery ticket was cashed
about one-half hour after the robbery. Detective Juillerat testified appellant's apartment was
"practically right in between" Hidden Carry-Out and the South Street Sunoco. He estimated
that it would only take two or three minutes to get from Hidden Carry-Out to appellant's
residence by car and stated that the two locations were easily within running distance of
one another. He further testified that it would have been possible for appellant to stop and
change clothing at his residence on Mulberry Street on his way from Hidden Carry-Out to
the South Street Sunoco, noting that a "common prudent person" could probably "change
a jacket * * * [in] 30 seconds to a minute."
{¶37} In finding appellant guilty, the jury was free to reject appellant's testimony that
he had not committed the robbery but had merely found the lottery tickets by the railroad
tracks near Doan Street and that he was unaware when validating the tickets that they had
been stolen from Hidden Carry-Out. "[W]hen conflicting evidence is presented at trial, a
conviction is not against the manifest weight of the evidence simply because the trier of fact
believed the prosecution testimony." State v. Lunsford, 12th Dist. Brown No. CA2010-10-
021, 2011-Ohio-6529, ¶ 17. When there is a conflict in the testimony of witnesses, it is for
the trier of fact to determine the weight and credibility to be given to such evidence. State
v. Marcum, 12th Dist. Butler No. CA2017-05-057, 2018-Ohio-1009, ¶ 31, citing State v.
DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Furthermore, "it [is]
within the province of the jury * * * to take note of any inconsistencies in the testimony and
resolve them accordingly, believing all, part, or none of each witness's testimony." State v.
Lark, 12th Dist. Fayette No. CA2018-03-004, 2018-Ohio-4940, ¶ 29. Given the
inconsistencies between appellant's trial testimony, his statement to law enforcement
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during the December 5, 2019 interview, wherein he failed to mention finding a stack of
Cashword lottery tickets near the railroad tracks by Doan Street, and the physical evidence
found in his apartment, the jury was entitled to reject's appellant's claims that he had not
committed the robbery or knowingly validated the stolen lottery tickets as a part of a scheme
to defraud others into paying cash prizes for the stolen tickets.
{¶38} Accordingly, for the reasons stated above, we find that appellant's convictions
for robbery and telecommunications fraud are supported by sufficient evidence and are not
against the manifest weight of the evidence. The trier of fact did not lose its way or create
such a manifest miscarriage of justice that appellant's convictions must be reversed. We
therefore overrule appellant's first assignment of error.
{¶39} Assignment of Error No. 2:
{¶40} APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL UNDER THE
SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND REVISED CODE R.C. 2945.71.
{¶41} In his second assignment of error, appellant argues he was denied his
constitutional and statutory right to a speedy trial. Appellant contends that because he
remained incarcerated after being arrested on December 5, 2019, the "triple-count"
provision set forth in R.C. 2945.71(E) applied and the state was required to bring him to trial
within 90 days. He further contends that the state's nearly sixth-month delay in bringing
him to trial following his arrest violated his constitutional right to a speedy trial under the
Sixth Amendment.
{¶42} R.C. 2945.73(B) provides that "[u]pon motion made at or prior to the
commencement of trial, a person charged with an offense shall be discharged if he is not
brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised
Code." However, "[i]f not timely asserted by motion prior to the commencement of trial,
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speedy trial rights are waived." State v. Miller, 12th Dist. Butler No. CA98-06-129, 1999
Ohio App. LEXIS 5515, *15 (Nov. 22, 1999). See also State v. Agostini, 12th Dist. Warren
Nos. CA2016-02-013 and CA2016-02-014, 2017-Ohio-4042, ¶ 57; State v. Taylor, 98 Ohio
St.3d 27, 2002-Ohio-7017, ¶ 37.
{¶43} The record before us indicates appellant failed to move for a discharge based
upon lack of a speedy trial. Appellant cannot raise a statutory speedy trial issue for the first
time on appeal. Id.; Agostini at ¶ 58; State v. Cassidy, 12th Dist. Clermont No. CA85-05-
036, 1985 Ohio App. LEXIS 9443, *2 (Dec. 2, 1985). His claim that his statutory speedy
trial rights were violated is, therefore, without merit.
{¶44} Appellant's claim that his constitutional speedy trial rights were violated is also
without merit. The United States Supreme Court set forth a balancing test that considers
the following four factors in determining whether trial delays were reasonable under the
Sixth and Fourteenth Amendments to the United States Constitution: (1) the length of delay,
(2) the reason the government assigns to justify the delay, (3) the defendant's assertion of
his right to a speedy trial, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S.
514, 530-532, 92 S.Ct. 2182 (1972). See also Taylor at ¶ 38. "The first factor, the length
of the delay, is a 'triggering mechanism,' determining the necessity of inquiry into the other
factors." State v. Triplett, 78 Ohio St.3d 566, 569 (1997). Unless there is some delay which
is "presumptively prejudicial, there is no necessity for inquiry into the other factors that go
into the balance." Barker at 530. Post-accusation delay approaching one year is generally
found to be presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 652, fn. 1,
112 S.Ct. 2686 (1992); Triplett at 569.
{¶45} In the present case, 174 days passed between the time appellant was
arrested on December 5, 2019 and the time his jury trial commenced on May 27, 2020.
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This delay is not presumptively prejudicial and there is no need for this court to consider the
additional Barker factors. See State v. Carpenter, 12th Dist. Butler No. CA2019-03-044,
2019-Ohio-4829, ¶ 27 (finding no need to consider the remaining Barker factors as the 132-
day delay between arrest and trial was not presumptively prejudicial). Appellant's
constitutional right to a speedy trial was not violated.
{¶46} Having found no merit to appellant's arguments, we overrule his second
assignment of error.
{¶47} Judgment affirmed.
PIPER, P.J., and S. POWELL, J., concur.
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